Goldstein v. Schleifer

Judgment and order reversed on the law, and a new trial granted, with costs to abide the event. It was an erroneous exercise of discretion to deny the motion to amend the answers. Since plaintiff did not claim surprise or prejudice, such amendment should be granted “ almost as a matter of course, to the end that the parties to the litigation may have an opportunity to raise and have determined such questions as they may think affect their respective interests.” (Milliken v. McGarrah, 104 App. Div. 110.) (See also, Markowitz v. Markowitz, 119 Misc. Rep. 609; Gedney v. Diorio, 190 App. Div. 85.) Under rule 166 of the Rules of Civil Practice, any amendment that may be granted by a justice at Special Term may be allowed by the justice presiding at the trial. (Feizi v. Second Russian Ins. Co., 199 App. Div. 775.) The defendants were foreclosed of a defense to the actions in the nature of an arbitration and award, which, if proved to be valid, would have been a complete defense to the actions. (Civ. Prac. Act, § 1448; McNulty v. Solley, 95 N. Y. 242; New York Lumber & W. W. Co. v. Schnieder, 119 id. 475; Sweet v. Morrison, 116 id. 19; Krauter v. Pacific Trading Corp. of America, Inc., 194 App. Div. 672; Buel v. Dewey, 22 How. Pr. 342; Grosvenor v. Hunt, 11 id. 355, 356; Ressequie v. Brownson, 4 Barb. 541, 545. See, also, 3 Cyc. 589; Wood v. Tunnicliff, 74 N. Y. 44; 2 R. C. L. 359.) Kelly, P. J., Rich, Jaycox, Manning and Kapper, JJ., concur.